On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-05-1104.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Simonelli.
A jury convicted defendant of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); a third count of second-degree sexual assault, N.J.S.A. 2C:14-2b; and a fourth count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to serve an aggregate custodial term of fifteen years with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following issues for our consideration:
BECAUSE THE STATEMENT THAT THE DEFENDANT MADE TO THE POLICE AFTER HE HAD SPENT MORE THAN TWELVE HOURS IN CUSTODY WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE, THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION TO SUPPRESS THE STATEMENT DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. Const. [a]mends. V, XIV; N.J. Const. [a]rt. I, ¶¶ 1 [and] 10.
BECAUSE THE JURY WAS WRONGLY ALLOWED TO TAKE THE VIDEO RECORDINGS OF THE DEFENDANT'S INTERROGATION AND THE ALLEGED VICTIM'S INTERVIEW INTO THE JURY ROOM, AND PLAY THEM REPEATEDLY DURING DELIBERATIONS OUTSIDE THE PRESENCE OF COUNSEL AND OF THE DEFENDANT, THE JUDGE SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL.
THE DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING A LAY WITNESS TO OFFER INADMISSIBLE OPINION TESTIMONY GOING TO THE ULTIMATE QUESTION OF DEFENDANT'S GUILT OR INNOCENCE, THEREBY DENYING DEFENDANT OF A FAIR TRIAL. U.S. Const. [a]mends. VI, XIV; N.J. Const. [a]rt. I, ¶¶ 1 [and] 10 (Not Raised Below).
THE SENTENCE IMPOSED ON THE DEFENDANT IS EXCESSIVE AND MUST BE REDUCED.
We have considered the record in light of the arguments advanced in the briefs and the applicable legal principles, and conclude the court committed reversible error in permitting the jury to have unfettered access to the videotaped interviews of both the victim and defendant. ...